Tuesday, 15 October 2013

Bill 18/2013: AN ACT to amend the Constitution of Malta. [Sexual Orientation]

View the pdf version in English and Maltese here.


AN ACT to amend the Constitution of Malta.

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives in this present Parliament assembled, and by the authority of the same as follows:-

Short title.
1.    The short title of this Act is the Constitution of Malta (Amendment) Act, 2013, and this Act shall be read and construed as one with the Constitution of Malta, hereinafter referred to as "the Constitution".

Amends article 32 of the Constitution
2.     In article 32 of the Constitution, for the words "creed or sex" there shall be substituted the words "creed, sex or sexual orientation".

Amends article 45 of the Constitution
3.    Article 45 of the Constitution shall be amended as follows: (a)    in sub-article (3) thereof, for the words "creed or sex" there shall be substituted the words "creed, sex or sexual orientation"; and

(b)     in paragraph (b) of sub-article (5) thereof, for the words "(not being qualifications specifically relating to sex)" there shall be substituted the words "(not being qualifications specifically relating to sex or sexual orientation)".

Objects and reasons

The objects of the Bill are to amend the provision of protection from  discrimination provided in  article  45  of  the  Constitution of Malta, Chapter IV, Fundamental Rights and Freedoms of the Individual.

The amendment will introduce immediate protection from discrimination on the ground of sexual orientation thereby ensuring that no law shall make any provision that is discriminatory either of itself or in its effect, nor any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority may cause a person to experience discriminatory treatment on the ground of sexual orientation.   This is expected to provide protection from discrimination in different areas of law and in one’s various life experiences. Introducing protection within the Constitution  further  strengthens  Parliament’s  commitment  in  this area; a commitment that started with the introduction of protection from discrimination under the Employment and Industrial Relations Act, the Equality for Men and Women Act and subsidiary legislation made thereunder, as well as the criminal sanctioning of homophobic actions under the Criminal Code.

It  is  expected  that  this  amendment  will  provide  redress  to victims  of  discrimination in  other  areas  which  do  not  at  present include an obligation of equality on the ground of sexual orientation. These other areas will include for example health, education, personal integrity and personal life.

The amendment retains the State’s discretion to legislate and regulate areas related to matters of personal law and thereby does not provide for same sex marriages. The regulation of this area of law is one  that  relies  heavily  on  deep-rooted  social  and  cultural connotations, and revolves around the right to marry which is to date not established to include a right to same-sex marriages.

The amendment also brings the protection from discrimination contained in the Constitution in line with the protection contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Charter of Fundamental Rights of the European Union, and makes such protection justiciable, thereby empowering victims to seek redress.

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